FERNANDO AJ.—Karunaratne v. Inhabitants of Mampe.
1936Present: Moseley J. and Fernando AJ.
KARUNARATNE v. INHABITANTS OF MAMPE239—D. C. Colombo, 50,562.
Public bathing place—User from time immemorial—Permissive user to neigh-bours—No public right.
Where the owner of a land allowed neighbours to come to his land andbathe in a well or pond, such a user cannot give rise to a public right.
A public right claimed from time immemorial must, be exercised ofright. It cannot originate by permission or usurpation of an act of pureneighbourliness.
A partition decree respecting the land would not affect public rightsunless the Crown was a party to the action.
A PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera (with him G. E. Chitty), for plaintiff, appellant.
N. E. Weerasooriya (with him J. R. Jayawardene), for defendants,respondents.
Cur. adv. vult.
November 26, 1936. Fernando A.J.—
The plaintiff brought this action to have it declared that the inhabit-ants of the subdivision of Mampe-Kesbewa were not entitled to use thewell situated on her land as a public bathing place, for restoration ofpossession, and for damages. The defendants in their answer pleadedthat from time immemorial, and by prescriptive use the inhabitants ofthe subdivision had been in the enjoyment of the well or pool in questionas a bathing place, and that the public had acquired a right thereto. Thelearned District Judge held on the evidence that the pond or pool in ques-tion had been used as a bathing place far beyond living memory, but it wascontended for the appellant that this finding is not supported by theevidence. The plaintiff herself in cross-examination stated that she hadbeen living on the land for about 20 years, and that during that periodthe villagers had come to the land to bathe there, and that she could notsay how long the bathing place had been in existence before her marriage,which was about 25 years ago. The witness Kulatunga stated that hewas 69 years old, and that his native village was Demaladua, a littlemore than a mile from this land, and that even during his boyhood thePokuna was used as a bathing place by all the inhabitants of the neigh-bouring village. He added that people came to this place to bathebecause there is no suitable bathing place in the locality, and that therewas a road over this land to go to the Pokuna. He then added that heheard that this Pokuna was handed over in 1907 by the original ownerto be repaired and maintained. In cross-examination he admitted thatthe original owner was a wealthy landed proprietor, that the people-who came to bathe were the neighbours of this land, and that the.plaintiff’s father-in-law had offered the bathing place for the use of thegeneral public. It is clear however that he does not know personallyabout this so-called dedication. He added that the old path is not nowused, and there is another path and could not say whether that pathwent near the plaintiff’s house. He had heard that some repairs had
FERNANDO A.J.—Karunaratne v. Inhabitants of Mampe.
been done in 1916, but did not see the work being done. He himselfhad written the letter P 4 addressed to the plaintiff’s proctor, and theposition taken up in that letter is that the well has been used and main-tained by the Village Committee for the public since 1907 when it washanded over to the Village Committee by the then owner. In view ofthis document, and of the nature of his evidence, it seems clear that thiswitness knew little or nothing of the use of this well or pond beforehe came ino office as Chairman of the Village Committee in 1930. Thenext witness Abeykoon does not appear to be a very satisfactory witness.At the beginning of his evidence he stated that he had known the Pokunafor about a hundred years, although he gave his own age as 67. “Thispond,” he says, “ is used by the residents of the locality, and they haveso used it from the time I remember ”. In cross-examination however,he stated that at the time he took the contract to repair the pond in 1916,the owner was Mendis Mudalali, and that Mendis Mudalali had givenpermission to people to bathe in this pond, and further added that thepeople who came to bathe are the neighbours within about 200 yards.It seems clear from this evidence that the use of the pond for bathingpurposes began with the permission of the plaintiff’s father-in-law Mendis.The other witness Caralina is the widow of Mendis, and her knowledgeof the land comes from visits paid once in two months in order to picknuts. “ I have seen 10 or 12 people bathing when I go to pluck nuts.The people of Pilliandara and Hettigala, and all those people used tocome and bathe. People from Jaligoda even -used to come and bathe”.In view of this evidence given in cross-examination, there seems littleground for her statement earlier that the pond was used by people fromtwo or three villages for bathing, and that about 200 to 300 people cameto bathe. At all events it is clear that she came to know the land onlyafter her husband purchased it, and his purchase was subsequent to hismarriage. I come to the conclusion therefore, that the evidence ofKulatunga and Caralina does not prove that this pond was used by thepublic from time immemorial, and that the evidence of Abeykoon clearlyshows that it began to be used only during the ownership of Mendis,who gave permission to the neighbours to bathe in the pond. In orderto establish a right of this kind, there must be evidence of immemorialuser; that is to say, evidence to show that the right was claimed andexercised at the earliest date that could be recalled by the oldest livinginhabitants, as is stated in Krause’s Voet, p. 174, the immemorial usagemust be exercised as of right, and must not originate in a favour orpermission or on usurpation of an act of pure neighbourliness. In otherwords where the owner of land allows the neighbours to come to his landand bathe in a well or pond situated in it purely as a neighbourly act,such use of the well or pond cannot give a right to the persons using thatwell for a considerable period. The evidence of Kulatunga and Abeykoonindicates that the user began from the act of Mendis, plaintiff’s father-in-law, who according to Kulatunga offered the pond for the use of thegeneral public to bathe, or according to Abeykoon gave permission topeople to bathe in the pond. Neither of these witnesses was presentat this so-called permission or offering, and they have merely put intotheir own language, the fact of which they seem to be aware, namely,that the neighbours were allowed by Mendis to bathe at the well.
FERNANDO A.J.—Almeida v. Amit.
I would accordingly hold that there was no evidence of immemorialuser, and that the evidence also indicates not a user by the public assuch, but merely by the neighbours living within a short distance of theland. It is also significant that the right is not claimed by any personliving in the neighbourhood as an appurtenant to his own land, but onlyas a public right.
The plaintiff also relies on the partition decree in her favour, and thedocument P 1 is the certificate of title issued to the plaintiff. It wouldappear from P 1 that a decree for sale was entered on November 23, 1926,and that the premises in question was sold to the plaintiff on March 7,1927. The decree itself has not been produced, but it is admitted thatthe decree did not reserve any right to bathe in the well in question,either to the public or to any other person. It is clear law that therights of the public would not be affected by a partition decree inasmuchas those rights would vest in the Crown, and unless the Crown is a partyto a partition action, the decree in the action will not bind the Crown. Apartition decree, however, is good against all others, and there can be nodoubt that any rights that any private individual whether as owner ofland, or otherwise might have had over the premises in question, havebeen extinguished by that partition decree. In these circumstances,
I think the learned District Judge was wrong in his findings on issues6a, 6b, 6c, and 6d. The plaintiff is the absolute owner of the land,and there are no persons having any servitude over the land, and at thesame time, it is clear that the public have no right to bathe in the wellin question. I would accordingly allow the appeal, set aside the decreeof the District Court, and enter decree for plaintiff as prayed for withoutdamages. The defendants-respondents will pay to the appellant the
costs of this action here and in the Court below.
Moseley J.—I agree.
KARUNARATNE v. INHABITANTS OF MAMPE